The Scholar: St. Mary's Law Review on Race and Social Justice


States should enact legislation affording same-sex partners the same rights and responsibilities to their children as opposite-sex partners. Although federal law mandates specific duties owed to the child, the language is silent about whether it applies to same-sex partners. Moreover, Congress passed the Defense of Marriage Act (DOMA), which defines marriage as being between a man and a woman. Some states—namely Texas—have passed their own version of DOMA. These states have subsequently denied same-sex partners the same rights granted to opposite-sex partners—such as conservatorship, visitation, and child support. Same-sex partners have used DOMA as a legal strategy to either avoid child support obligations, or as a means to deny visitation. As a result, the child is harmed by either being denied financial support or being denied a relationship with the other parent. State legislatures should repeal their DOMAs in order to avoid same-sex families from being denied services. Furthermore, the federal government should pass legislation that explicitly provides the same rights and responsibilities to same-sex partners. If the legislatures fail to act, it is imperative the courts intervene and incorporate a way to apply existing statutes to same-sex partners. Three methods effectively employed by courts include: the doctrines of de facto parent, psychological parent, and equitable parent. By implementing one these doctrines, courts have granted child support and visitation orders to same-sex parents. Nonetheless, it is critical for courts to continue to analyze the statutes more broadly until state legislatures take notice and realize the need for clear laws that protect same-sex families.

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St. Mary's University School of Law



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